(2) The contracting officer may award a contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest. Notwithstanding such a determination, the provisions of paragraph (g) of this section apply to the procurement in question.

(3) If SBA does not issue its determination within 15 business days (or request an extension that is granted), the contracting officer may award the contract if he or she determines in writing that there is an immediate need to award the contract and that waiting until SBA makes its determination will be disadvantageous to the Government. Notwithstanding such a determination, the provisions of paragraph (g) of this section apply to the procurement in question.

(b)Basis for determination. The size determination will be based primarily on the information supplied by the protestor or the entity requesting the size determination and that provided by the concern whose size status is at issue. The determination, however, may also be based on grounds not raised in the protest or request for size determination. SBA may use other information and may make requests for additional information to the protestor, the concern whose size status is at issue and any alleged affiliates, or other parties.

(c)Burden of persuasion. The concern whose size is under consideration has the burden of establishing its small business size.

(d)Weight of evidence. SBA will give greater weight to specific, signed, factual evidence than to general, unsupported allegations or opinions. In the case of refusal or failure to furnish requested information within a required time period, SBA may assume that disclosure would be contrary to the interests of the party failing to make disclosure.

(e)Formal size determination. The SBA will base its formal size determination upon the record, including reasonable inferences from the record, and will state in writing the basis for its findings and conclusions.

(f)Notification of determination. SBA will promptly notify the contracting officer, the protester, and the protested concern. SBA will send the notification by verifiable means, which may include facsimile, electronic mail, or overnight delivery service.

(g)Results of an SBA Size Determination.

(1) A contracting officer may award a contract to a protested concern after the SBA Area Office has determined either that the protested concern is an eligible small business or has dismissed all protests against it. If OHA subsequently overturns the Area Office's determination or dismissal, the contracting officer may apply the OHA decision to the procurement in question.

(2) A contracting officer shall not award a contract to a protested concern that the Area Office has determined is not an eligible small business for the procurement in question.

(i) If a contracting officer receives such a determination after contract award, and no OHA appeal has been filed, the contracting officer shall terminate the award.

(ii) If a timely OHA appeal is filed after contract award, the contracting officer must consider whether performance can be suspended until an appellate decision is rendered.

(iii) If OHA affirms the size determination finding the protested concern ineligible, the contracting officer shall either terminate the contract or not exercise the next option.

(3) The contracting officer must update the Federal Procurement Data System and other procurement reporting databases to reflect the final agency size decision (the formal size determination if no appeal is filed or the appellate decision).

(4) Once SBA has determined that a concern is other than small for purposes of a particular procurement, the concern cannot later become eligible for the procurement by reducing its size.

(5) A concern determined to be other than small under a particular size standard is ineligible for any procurement or any assistance authorized by the Small Business Act or the Small Business Investment Act of 1958 which requires the same or a lower size standard, unless SBA recertifies the concern to be small pursuant to § 121.1010 or OHA reverses the adverse size determination. After an adverse size determination, a concern cannot self-certify as small under the same or lower size standard unless it is first recertified as small by SBA. If a concern does so, it may be in violation of criminal laws, including section 16(d) of the Small Business Act, 15 U.S.C. 645(d). If the concern has already certified itself as small on a pending procurement or on an application for SBA assistance, the concern must immediately inform the officials responsible for the pending procurement or requested assistance of the adverse size determination.

(h)Limited reopening of size determinations. SBA may, in its sole discretion, reopen a formal size determination to correct an error or mistake, provided it is within the appeal period and no appeal has been filed with OHA. Once the agency has issued a final decision (either a formal size determination that is not timely appealed or an appellate decision), SBA cannot re-open the size determination.

SBA must receive comments to the proposed rule on or before November 27, 2018.

13 CFR Parts 103, 120 and 121

Summary

The U.S. Small Business Administration (SBA or Agency) is proposing to amend various regulations governing its business loan programs, including the SBA Express and Export Express Loan Programs and the Microloan and Development Company (504) loan programs.

Notification of waiver of the Nonmanufacturer Rule for positive airway pressure devices.

This action is effective July 2, 2018.

13 CFR Part 121

Summary

The U.S. Small Business Administration (SBA) is granting a class waiver of the Nonmanufacturer Rule (NMR) for Positive Airway Pressure Devices and Supplies Manufacturing. This U.S. industry comprises establishments primarily engaged in manufacturing Continuous Positive Airway Pressure (CPAP) devices, Bi-level Positive Airway Pressure (BiPAP) devices, and other products intended to treat sleep apnea by keeping a person's airways open during sleep.

SBA must receive comments to this revised methodology on or before June 26, 2018.

13 CFR Part 121

Summary

The U.S. Small Business Administration (SBA or Agency) advises the public that it has revised its white paper explaining how it establishes, reviews and modifies small business size standards. The revised white paper, entitled “SBA's Size Standards Methodology (April, 2018),” (Revised Methodology) is available for review and comments. This notification discusses the comments SBA received on the methodology that was applied to the recent review of size standards under the Jobs Act and Agency's responses, followed by a description of major changes to the methodology and their impacts on size standards.

2018-03-26; vol. 83 # 58 - Monday, March 26, 2018

83 FR 12849 - Conforming Statutory Amendments and Technical Corrections to Small Business Government Contracting Regulations

This rule is effective on May 25, 2018 without further action, unless significant adverse comment is received by April 25, 2018. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the Federal Register .

13 CFR Parts 121, 125, 126, and 127

Summary

The U.S. Small Business Administration (SBA or Agency) is amending its regulations to incorporate a provision of the National Defense Authorization Act of 2018 (NDAA 2018) and to update and provide several technical corrections to SBA's regulations. Specifically, the NDAA 2018 amended the Small Business Act by replacing fixed dollar amount thresholds with references to the micro-purchase and simplified acquisition thresholds. SBA is updating its regulations to conform to this new statutory language. SBA is also updating the sole source dollar amounts for the Service-Disabled Veteran-Owned (SDVO) small business and the Historically Underutilized Business Zone (HUBZone) small business regulations. The thresholds for sole source contracting are contained in the Small Business Act, SBA's regulations, and the Federal Acquisition Regulations (FAR). These thresholds are updated in the FAR for inflation periodically, and therefore, over time, SBA's regulations and the FAR's numbers diverge. SBA is making this change to conform the thresholds contained in SBA's regulations to those in the FAR. This rule also allows indirect ownership by United States citizens in the HUBZone program to more accurately align with the underlying statutory authority. Finally, SBA is making several technical changes to address mistakes and typos made in previous rulemakings. For example, this final rule will update some cross-references that were not updated when a previous rulemaking changed numbering. Other changes made are for errors, grammar, syntax, and clarity.

SBA is seeking public input to assist in establishing a permanent alternative size standard for its 7(a) and 504 Loan Programs. SBA also invites suggestions on sources of relevant data and information that SBA should evaluate in developing a permanent alternative size standard and assessing its impact. Finally, SBA also seeks input from interested parties on a potential proposal to apply the permanent alternative size standard as an alternative to using industry based size standards for small business applicants under its Economic Injury Disaster Loan (“EIDL”) Program.

2017-09-27; vol. 82 # 186 - Wednesday, September 27, 2017

82 FR 44886 - Small Business Size Standards; Adoption of 2017 North American Industry Classification System for Size Standards

The U.S. Small Business Administration (SBA) is adopting, without change, its proposed revisions to small business size standards. With the adoption of the proposed changes, SBA incorporates the U.S. Office of Management and Budget's (OMB) North American Industry Classification System (NAICS) revision for 2017, identified as NAICS 2017, into its table of small business size standards. NAICS 2017 created 21 new industries by reclassifying, combining, or splitting 29 existing industries under changes made to NAICS in 2012 (NAICS 2012). SBA's size standards for these 21 new industries have resulted in an increase to size standards for six NAICS 2012 industries and part of one industry, a decrease to size standards for two, a change in the size standards measure from average annual receipts to number of employees for one, and no change in size standards for twenty industries and part of one industry.

2017-06-02; vol. 82 # 105 - Friday, June 2, 2017

82 FR 25503 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

Effective Date: This rule is effective on July 3, 2017. Applicability Date: Size Standard Petitions pertaining to size standards revised, modified, or established in a final rule published during the interval between November 25, 2015, and July 3, 2017 shall be considered timely if filed within 30 calendar days of the latter date.

13 CFR Parts 121 and 134

Summary

The U.S. Small Business Administration (SBA) is amending the rules of practice of its Office of Hearings and Appeals (OHA) to implement section 869 of the National Defense Authorization Act for Fiscal Year 2016 and section 1833 of the National Defense Authorization Act for Fiscal Year 2017. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions). This rule also revises the rules of practice for OHA appeals of agency employee disputes.

2017-04-18; vol. 82 # 73 - Tuesday, April 18, 2017

82 FR 18253 - Small Business Size Standards; Adoption of 2017 North American Industry Classification System for Size Standards

SBA must receive comments to this proposed rule on or before June 19, 2017.

13 CFR Part 121

Summary

The U.S. Small Business Administration (SBA) proposes to amend its small business size regulations to incorporate the U.S. Office of Management and Budget's (OMB) North American Industry Classification System (NAICS) revision for 2017, identified as NAICS 2017, into its table of small business size standards. NAICS 2017 created 21 new industries by reclassifying, combining, or splitting 29 existing industries under changes made to NAICS in 2012 (NAICS 2012). SBA's proposed size standards for these 21 new industries have resulted in an increase to size standards for six NAICS 2012 industries and part of one industry, a decrease to size standards for two, a change in the size standards measure from average annual receipts to number of employees for one, and no change in size standards for twenty industries and part of one industry. SBA proposes to adopt the updated table of size standards, effective October 1, 2017

The U.S. Small Business Administration (SBA) is amending its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014 (NDAA 2014). Section 1614 amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract. The changes authorized by this statute will allow an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier, to the extent reported on the subcontracting plans of its lower tier subcontractors. The final rule also implements the statutory requirements related to the subcontracting plans of all subcontractors that are required to maintain such plans, including the requirement to monitor subcontractors' performance and compliance toward reaching the goals set out in those plans as well as their compliance with subcontracting reporting requirements. SBA is also clarifying that the size standard for a particular subcontract must appear in the solicitation for the subcontract.

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on January 26, 2016 (81 FR 4469). The rule increased small business size standards for a number of industries in North American Industry Classification System (NAICS) Sector 31-33, Manufacturing. The rule also stated that SBA was amending Footnote 5 to the table of size standards relating to NAICS 326211, Tire Manufacturing (except Retreading), to reflect the current Census Product Classification Codes 3262111 and 3262113. However, SBA inadvertently omitted code 3262111 from the revised text in Footnote 5. This action corrects the omission. This correction does not affect the 1,500-employee small business size standard for NAICS 326211.

The U.S. Small Business Administration (SBA) published a final rule in the Federal Register on July 25, 2016 (81 FR 48557), amending its regulations to establish a new Government-wide mentor-protégé program for all small business concerns, consistent with SBA's mentor-protégé program for Participants in SBA's 8(a) Business Development (BD) program. The rule also made several additional changes to current size, 8(a), Office of Hearings and Appeals, and HUBZone regulations, concerning among other things, ownership and control, changes in primary industry, economic disadvantage of a Native Hawaiian Organization (NHO), standards of review, and interested party status for some appeals. This document makes several technical corrections to that final rule, including correcting citations, eliminating a paragraph that conflicts with a new provision added by that final rule, and making conforming amendments.

2016-10-07; vol. 81 # 195 - Friday, October 7, 2016

81 FR 69723 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

The U.S. Small Business Administration (SBA) is proposing to amend the rules of practice of its Office of Hearings and Appeals (OHA) to implement Section 869 of the National Defense Authorization Act for Fiscal Year 2016. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards. This rule also proposes to revise the rules of practice for OHA appeals of agency employee grievances.

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on October 2, 2013. The rule, which described how supply procurements should be classified, mistakenly attempted to amend a regulation by removing words that did not exist in the particular paragraph. This notice corrects that rule document by removing the instruction.

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on October 2, 2013 (78 FR 61113). The rule, which described how supply procurements should be classified, mistakenly attempted to amend a regulation by removing words that did not exist in the particular paragraph. This document corrects that rule document by removing the instruction.

The U.S. Small Business Administration (SBA or Agency) seeks comments on a proposed amendment to its regulations governing the small business timber set-aside program (hereafter referred to as the “timber program”) so that appraisals on small business set-aside sales be made to the nearest small business mill. Timber sale appraisals are performed for small business qualifying set-aside and non-set-aside sales. When the U.S. Department of Agriculture's (USDA) Forest Service (FS) offers timber for sale, it appraises its potential market value and sets the minimum bid that it will accept based on that appraisal. Currently, appraisals in small business set-aside timber sales take into account the haul costs to the nearest mill regardless of that mill's size. Since set-aside timber sales require the use of small business mills, SBA proposes that the appraisal on set-aside timber sales be made to the nearest small business mill in order to accurately reflect the estimated cost to an eligible bidder. SBA is also requesting comment on a possible policy alternative that would use a weighted approach to appraising.

The U.S. Small Business Administration (SBA or Agency) is amending its regulations to implement provisions of the Small Business Jobs Act of 2010, and the National Defense Authorization Act for Fiscal Year 2013. Based on authorities provided in these two statutes, the rule establishes a Government-wide mentor-protégé program for all small business concerns, consistent with SBA's mentor-protégé program for Participants in SBA's 8(a) Business Development (BD) program. The rule also makes minor changes to the mentor-protégé provisions for the 8(a) BD program in order to make the mentor-protégé rules for each of the programs as consistent as possible. The rule also amends the current joint venture provisions to clarify the conditions for creating and operating joint venture partnerships, including the effect of such partnerships on any mentor-protégé relationships. In addition, the rule makes several additional changes to current size, 8(a) Office of Hearings and Appeals and HUBZone regulations, concerning among other things, ownership and control, changes in primary industry, standards of review and interested party status for some appeals. Finally, SBA notes that the title of this rule has been changed.

This final rule amends the regulations pertaining to the determination of size eligibility based on affiliation by creating distinctive requirements for small business applicants for assistance from the Business Loan, Disaster Loan and Surety Bond Guarantee Program (“SBG”). For purposes of this rule, the Business Loan Programs consist of the 7(a) Loan Program, the Microloan Program, the Intermediary Lending Pilot Program (“ILP”), and the Development Company Loan Program (“504 Loan Program”). Note: the Intermediary Lending Pilot Program was inadvertently left out of the proposed rule. There are currently intermediaries with revolving funds for eligible small businesses, so the program has been included in this final rule. The Disaster Loan Programs consist of Physical Disaster Business Loans, Economic Injury Disaster Loans, Military Reservist Economic Injury Disaster Loans, and Immediate Disaster Assistance Program loans. This rule redefines and establishes separate affiliation guidance applicable only to small business applicants in these Programs.

2016-05-31; vol. 81 # 104 - Tuesday, May 31, 2016

81 FR 34243 - Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments

This rule amends the U.S. Small Business Administration's (SBA or Agency) regulations to implement provisions of the National Defense Authorization Act of 2013, which pertain to performance requirements applicable to small business and socioeconomic program set-aside contracts and small business subcontracting. This rule also amends SBA's regulations concerning the nonmanufacturer rule and affiliation rules. Further, this rule allows a joint venture to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under the size standard corresponding to the NAICS code assigned in the solicitation.

Effective Date: This Policy Statement is effective May 24, 2016. Comment Date: Comments must be received on or before July 25, 2016.

13 CFR Part 121

Summary

The Small Business Administration (SBA) hereby gives notice of its intended application and interpretation of the interaffiliate transactions exclusion from annual receipts set forth in its Small Business Size Regulations. Effective at the issuance of this notice, SBA will apply the exclusion to properly documented transactions between a concern and its domestic or foreign affiliates, regardless of the type of relationship that resulted in the finding of affiliation.

Effective Date: This rule is effective on August 1, 2016. Comment Date: Comments must be received on or before July 18, 2016.

13 CFR Parts 107, 120, 121, 124, 125, 126, 127, 142, and 146

Summary

The Small Business Administration (SBA) is amending its regulations to adjust for inflation the amount of certain civil monetary penalty that is within the jurisdiction of the agency. This adjustment is required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This rule also makes technical amendments to the regulations governing misrepresentations in SBA contracting programs to add a cross reference to the regulation that contains the applicable penalty amounts for misrepresentations and to correct a citation in the same regulations. Finally, the rule makes a technical amendment to an existing regulation governing small business investment companies to add a cross reference to a new civil penalty provision.

2016-01-26; vol. 81 # 16 - Tuesday, January 26, 2016

81 FR 4436 - Small Business Size Standards: Industries With Employee Based Size Standards Not Part of Manufacturing, Wholesale Trade, or Retail Trade

The U.S. Small Business Administration (SBA) modifies 36 employee based small business size standards for industries and sub-industries ( i.e., “exceptions” in SBA's table of size standards) that are not part of North American Industry Classification System (NAICS) Sector 31-33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44-45 (Retail Trade). Specifically, SBA increases 30 size standards for industries and three for sub-industries or “exceptions.” SBA also decreases size standards from 500 employees to 250 employees for three industries, namely NAICS 212113 (Anthracite Mining), NAICS 212222 (Silver Ore Mining), and NAICS 212291 (Uranium-Radium-Vanadium Ore Mining). SBA maintains the Information Technology Value Added Resellers (ITVAR) sub-industry or “exception” under NAICS 541519 (Other Computer Related Services) with the 150-employee size standard, but amends Footnote 18 to SBA's table of size standards by adding the requirement that the supply ( i.e., computer hardware and software) component of small business set-aside ITVAR contracts must comply with the nonmanufacturing performance requirements or nonmanufacturer rule (NMR). Additionally, SBA eliminates the Offshore Marine Air Transportation Services sub-industry or “exception” under NAICS 481211 and 481212 and Offshore Marine Services sub-industry or “exception” under NAICS Subsector 483 and their $30.5 million receipts based size standard. This change includes removing Footnote 15 from the table of size standards. As part of its ongoing comprehensive size standards review, SBA evaluated employee based size standards for 57 industries and five sub-industries that are not in NAICS Sectors 31-33, 42, or 44-45 to determine whether they should be retained or revised.

The United States Small Business Administration (SBA) is increasing small business size standards for 209 industries in North American Industry Classification System (NAICS) Sector 31-33, Manufacturing. SBA is also modifying the size standard for NAICS 324110, Petroleum Refiners, by increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining and by eliminating the requirement that 90 percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feedstocks. The Agency is also updating Footnote 5 to NAICS 326211 to reflect the current Census Product Classification Codes 3262111 and 3262113. As part of its ongoing comprehensive size standards review, SBA evaluated employee based size standards for all 364 industries in NAICS Sector 31-33 to determine whether they should be retained or revised. This rule is one of a series of rules that result from SBA's review of size standards of industries grouped by NAICS Sector.

The U.S. Small Business Administration (SBA or Agency) is increasing 47 small business size standards based on a concern's number of employees. These increases affect 46 industries in North American Industry Classification System (NAICS) Sector 42, Wholesale Trade, and one industry in NAICS Sector 44-45, Retail Trade. SBA retains the size standards for the remaining industries in those sectors and the 500-employee size standard for the Federal Government's procurement of supplies under the nonmanufacturer rule. As part of its comprehensive size standards review under the Small Business Jobs Act of 2010, SBA reviewed all 71 industries in NAICS Sector 42, as well as the two industries in NAICS Sector 44-45, that have employee based size standards. The revisions adopted in this rule primarily affect eligibility for SBA's financial assistance programs, and have no impact on Federal procurement programs.

This rule finalizes, without change, the U.S. Small Business Administration's (SBA or Agency) June 12, 2014 interim final rule that adjusted monetary small business size standards ( i.e., receipts, assets, net worth, and net income) for inflation that has occurred since the last inflation adjustment in 2008. Specifically, the interim final rule increased by 8.73 percent all industry specific monetary small business size standards (except the $750,000 receipts based size standard for agricultural enterprises established by the Small Business Act). The interim final rule also increased by the same rate the tangible net worth and net income based alternative size standard for the Small Business Investment Company (SBIC) Program and receipts based size standards for Sales of Government Property (Other Than Manufacturing) and Stockpile Purchases. This final rule adopts those increases, without change.

The U.S. Small Business Administration (SBA or Agency) is proposing to amend its regulations to implement Section 1614 of the National Defense Authorization Act for Fiscal Year 2014. The proposed amendments authorized by this statute would allow an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier. The prime contractor shall incorporate the lower tier subcontracting performance into its subcontracting plan goals. Currently, other than small business prime contractors establish small business subcontracting goals at the first tier level, and receive credit toward their subcontracting plan goal performance at the first tier level. The rule also proposes to implement the statutory requirements related to the subcontracting plans of all subcontractors that are required to maintain such plans, including the requirement to monitor subcontractors' performance and compliance towards reaching the goals set out in those plans as well as their compliance with subcontracting reporting requirements. SBA is also proposing to clarify that the size standard for a particular subcontract must appear in the solicitation for the subcontract.

SBA must receive comments to the proposed rule on or before December 1, 2015.

13 CFR Parts 115, 120, and 121

Summary

The U.S. Small Business Administration (SBA) has determined that changing conditions in the American economy and a constantly evolving small business community compel it to seek ways to improve program efficiency for its Surety Bond Guarantee (“SBG”) Program, and the business loan programs consisting of the 7(a) Loan Program, the Business Disaster Loan Programs (collectively, the Economic Injury Disaster Loans, Reservist Injury Disaster Loans, Physical Disaster Business Loans, Immediate Disaster Assistance Program loans), the Microloan Program, and the Development Company Program (the “504 Loan Program”). As a result, SBA proposes to simplify guidelines for determining affiliation for eligibility based on size as it relates to these programs. This proposed rule would redefine affiliation for all five Programs, thereby simplifying eligibility determinations.

2015-04-07; vol. 80 # 66 - Tuesday, April 7, 2015

80 FR 18556 - Small Business Mentor Protégé Program; Small Business Size Regulations; Government Contracting Programs; 8(a) Business Development/Small Disadvantaged Business Status Determinations; HUBZone Program; Women-Owned Small Business Federal Contract Program; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

The comment period for the proposed rule published on February 5, 2015 is extended to May 6, 2015.

13 CFR Parts 121, 124, 125, 126, 127, and 134

Summary

The U.S. Small Business Administration (SBA) is extending the comment period for the proposed rule published in the Federal Register on February 5, 2015. The comment period is scheduled to close on April 6, 2015. SBA is extending the comment period an additional 30 days in response to the significant level of interest generated by the proposed rule and requests from multiple stakeholders for an extension. Given the scope of the proposed rule and the nature of the issues raised by the comments received to date, SBA believes that affected businesses need more time to review the proposal and prepare their comments.

The U.S. Small Business Administration (SBA or Agency) is seeking comments on possible amendments to its Small Business Timber Set-Aside Program (the Program) regulations. The Small Business Timber Set-Aside Program is rooted in the Small Business Act, which tasked SBA with ensuring that small businesses receive a fair proportion of the total sales of government property. Several timber industry stakeholders have petitioned SBA to make changes to the Program because they believe that the current regulations do not provide adequate protections to ensure that small businesses maintain a fair share of the National Forest timber sale market. In response, SBA, in consultation with the United States Forest Service, is seeking comment on several issues to assist the agency in formulating potential regulatory proposals. SBA will share the comments received in response to this advance notice of proposed rulemaking with the United States Forest Service for their use in determining whether, and if so how, to make any corresponding changes to the United States Forest Service Handbook. First, SBA seeks comments on the possibility of including saw timber volume sold as part of a stewardship timber or stewardship services contract in the calculation of the timber sale share of small business. Second, SBA seeks comments on how timber sale appraisals should be performed for small business set aside sales and associated costs and benefits to stakeholders. The SBA is also seeking input on various policy options.

2015-03-09; vol. 80 # 45 - Monday, March 9, 2015

80 FR 12353 - Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments

The comment period for the proposed rule published on December 29, 2014 (79 FR 77955) is extended through April 6, 2015.

13 CFR Parts 121, 124, 125, 126 and 127

Summary

The U.S. Small Business Administration (SBA) is reopening the comment period for the proposed rule published in the Federal Register on December 29, 2014 at 79 FR 77955. In that rule SBA proposed to implement provisions of the National Defense Authorization Act of 2013, which pertain to performance requirements applicable to small business and socioeconomic program set aside contracts and small business subcontracting. SBA also proposed to make changes to its regulations concerning the nonmanufacturer rule and affiliation rules. Further, SBA proposed to allow a joint venture to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under the size standard corresponding to the NAICS code assigned in the solicitation. Finally, SBA requested comments on the timeline and procedures for North American Industry Classification System code appeals. The comment period closed on February 27, 2015. SBA is reopening the comment period in response to the significant level of interest generated by the proposed rule and due to the request of multiple stakeholders. Given the scope of the proposed rule and the nature of the issues raised by the comments received to date, SBA believes that affected businesses need more time to review the proposal and fully prepare their comments.

This rule implements provisions of the National Defense Authorization Act of 2013 (NDAA) pertaining to small business size. This rule amends the U.S. Small Business Administration's (SBA or Agency) program regulations to implement statutory provisions establishing limitations of liability from fraud penalties for individuals or firms that misrepresent business concerns as being small for purposes of Federal procurement opportunities if they acted in good faith reliance upon small business status advisory opinions received from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs). The rule also amends SBA's regulations to establish the criteria small business status advisory opinions must meet in order to be deemed adequate and specify the review process for such opinions. Finally, the rule further amends SBA's regulations to update the circumstances under which SBA may initiate a formal size determination.

2015-02-05; vol. 80 # 24 - Thursday, February 5, 2015

80 FR 6618 - Small Business Mentor Protégé Program; Small Business Size Regulations; Government Contracting Programs; 8(a) Business Development/Small Disadvantaged Business Status Determinations; HUBZone Program; Women-Owned Small Business Federal Contract Program; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

The U.S. Small Business Administration (SBA or Agency) is proposing to amend its regulations to implement provisions of the Small Business Jobs Act of 2010 and the National Defense Authorization Act for Fiscal Year 2013. Based on authorities provided in these two statutes, the proposed rule would establish a Government-wide mentor-protégé program for all small business concerns, consistent with SBA's mentor-protégé program for Participants in SBA's 8(a) Business Development (BD) program. The proposed rule would also make minor changes to the mentor-protégé provisions for the 8(a) Business Development program in order to make the mentor-protégé rules for each of the programs as consistent as possible. The proposed rule would amend the current joint venture provisions to clarify the conditions for creating and operating joint venture partnerships, including the effect of such partnerships on any mentor-protégé relationships. Finally, the proposed rule would make several additional changes to current size, 8(a) Office of Hearings and Appeals or HUBZone regulations, concerning among other things, ownership and control, changes in primary industry, standards of review and interested party status for some appeals.

2014-12-29; vol. 79 # 248 - Monday, December 29, 2014

79 FR 77955 - Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments

The U.S. Small Business Administration (SBA or Agency) is proposing to amend its regulations to implement provisions of the National Defense Authorization Act of 2013, which pertain to performance requirements applicable to small business and socioeconomic program set aside contracts and small business subcontracting. SBA is also proposing to make changes to its regulations concerning the nonmanufacturer rule and affiliation rules. Further, SBA is proposing to allow a joint venture to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under the size standard corresponding to the NAICS code assigned in the solicitation. Finally, SBA is requesting comments on the timeline and procedures for North American Industry Classification System code appeals.

2014-12-02; vol. 79 # 231 - Tuesday, December 2, 2014

79 FR 71296 - Small Business Size Standards; Adoption of 2012 North American Industry Classification System for Size Standards; Correction

The U.S. Small Business Administration (SBA) is correcting an interim final rule that appeared in the Federal Register on August 20, 2012 (75 FR 49991), effective October 1, 2012. The interim rule amended SBA's Small Business Size Regulations by incorporating the Office of Management and Budget's 2012 North American Industry Classification System update (NAICS 2012) into its table of small business size standards. The NAICS 2012 revised the definitions of some NAICS industries by deleting some and merging others with the new or other revised industries. This action corrects the small business size standard for NAICS 334419, Other Electronic Component Manufacturing, from 500 employees to 750 employees, effective immediately.

2014-10-20; vol. 79 # 202 - Monday, October 20, 2014

79 FR 62576 - Small Business Size Standards; Industries With Employee Based Size Standards Not Part of Manufacturing, Wholesale Trade, or Retail Trade; Correction

These corrections are effective October 20, 2014. Comments on the proposed rule published September 10, 2014 at 79 FR 53646, continue to be accepted until November 10, 2014.

Summary

This notice makes corrections to the proposed rule that appeared in the Federal Register on September 10, 2014, entitled Small Business Size Standards; Industries with Employee Based Size Standards Not Part of Manufacturing, Wholesale Trade, or Retail Trade. This document corrects several incorrect figures in the preamble text.

This rule proposes to implement provisions of the National Defense Authorization Act of 2013 (NDAA) pertaining to small business size. Specifically, the rule proposes to amend the Small Business Administration's (SBA or Agency) program regulations to implement statutory provisions establishing a safe harbor from fraud penalties for individuals or firms that misrepresent business concerns as being small for purposes of Federal procurement opportunities if they acted in good faith reliance upon small business status advisory opinions received from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs). The rule also proposes to amend SBA's regulations to establish the criteria small business status advisory opinions must meet in order to be deemed adequate and specify the review process for such opinions. Finally, the proposed rule would amend SBA's regulations to update the circumstances under which SBA may initiate a formal size determination.

Effective Date: This rule is effective July 14, 2014. Comment Date: Comments must be received on or before August 11, 2014.

13 CFR Part 121

Summary

The U.S. Small Business Administration (SBA or Agency) is adjusting the monetary based industry size standards ( i.e., receipts, assets, net worth, and net income) for inflation that has occurred since the last adjustment in 2008. These adjustments are in addition to the recent revisions to size standards as part of the current comprehensive size standards review, as mandated by the Small Business Jobs Act of 2010 (Jobs Act). Also adjusted for inflation are program based size standards, with the exception of the new alternative size standard for SBA's 7(a) and 504 loan programs that was established under the Jobs Act. The new alternative size standard will remain in effect until SBA establishes a permanent alternative size standard for the 7(a) and 504 loan programs. SBA is also deleting references to Surety Bond Guarantee size standards for contracts awarded in 2005 in the Presidentially declared disaster areas following Hurricanes Katrina, Rita, and Wilma. In addition, SBA is deleting the determination date for eligibility under the Agency's Economic Injury Disaster Loan (EIDL) Program in connection with the same 2005 hurricanes. Finally, SBA is clarifying that footnote 9 to its table of size standards is not limited to NAICS 531190, but rather applies to all industries in Industry Group 5311, Lessors of Real Estate.

The U.S. Small Business Administration (SBA) published a final rule in the Federal Register on July 16, 2013 (78 FR 42391), amending its regulations governing small business subcontracting. That document amended § 121.411 without incorporating the amendments made to that section by a final rule published on June 28, 2013 (78 FR 38811), which unintentionally resulted in duplicate paragraphs. This document corrects the final regulations by properly designating the paragraphs in § 121.411.

SBA must receive comments to this proposed rule on or before July 18, 2014.

13 CFR Part 121

Summary

The U.S. Small Business Administration (SBA or Agency) proposes to increase employee based size standards for 46 industries in North American Industry Classification System (NAICS) Sector 42, Wholesale Trade, and one industry in NAICS Sector 44-45, Retail Trade and retain the current size standards in the remaining industries in those sectors. SBA also proposes to retain the current 500-employee size standard for Federal procurement of supplies under the nonmanufacturer rule. As part of its ongoing comprehensive size standards review, SBA reviewed all 71 industries in NAICS Sector 42 as well as the two industries in NAICS Sector 44-45 that have employee based size standards. The proposed revisions, if adopted, will primarily affect eligibility for SBA's financial assistance programs. This proposed rule is one of a series of proposed rules that will review size standards of industries grouped by NAICS Sector.

The United States Small Business Administration (SBA) is increasing two small business size standards in North American Industry Classification System (NAICS) Sector 23, Construction, and retaining the current standards for the 30 remaining industries in that Sector. Specifically, SBA is increasing the size standards for NAICS 237210, Land Subdivision, from $7 million in average annual receipts to $25.5 million, and for Dredging and Surface Cleanup Activities, a sub-industry category (or an “exception”) under NAICS 237990, Other Heavy and Civil Engineering Construction, from $20 million to $25.5 million. As part of its ongoing comprehensive size standards review, SBA evaluated all size standards in NAICS Sector 23 to determine whether they should be retained or revised.

The United States Small Business Administration (SBA) is revising the size standards for 13 industries in North American Industry Classification System (NAICS) Sector 22, Utilities. Specifically, SBA has increased receipts based size standards for three industries and changed the basis for measuring business size from megawatt hours to number of employees for the 10 electric power generation, transmission, and distribution industries. In addition, SBA is removing Footnote 1 from SBA's Table of Size Standards that applies to all of the NAICS codes in electric power generation, transmission, and distribution. As part of its ongoing comprehensive size standards review, SBA evaluated all megawatt hour and receipts based size standards for industries in NAICS Sector 22 to determine whether they should be retained or revised. SBA did not review the employee based size standard for Natural Gas Distribution, NAICS 221210, in this rule, but will review it in the near future with other employee based size standards.

Effective November 27, 2013, and applicable beginning October 1, 2012.

13 CFR Part 121

Summary

This document corrects an error in the U.S. Small Business Administration's (SBA) interim final rule that appeared in the Federal Register , which adopted North American Industry Classification System 2012 (NAICS 2012) for small business size standards. This document also removes the entry for NAICS 315192 in its entirety. These corrections do not affect small business size standards.

The U.S. Small Business Administration (SBA) is amending its regulations governing small business contracting procedures. Specifically, this rule amends SBA's regulations to establish policies and procedures for setting aside, partially setting aside and reserving Multiple Award Contracts for small business concerns. SBA is also is establishing policies and procedures for setting aside task and delivery orders for small business concerns under Multiple Award Contracts. In addition, SBA is addressing how it will determine size under certain Agreements and when recertification of status will be required. Finally, SBA is establishing a new definition of consolidation and reorganizing its prime contracting assistance regulations.

2013-07-26; vol. 78 # 144 - Friday, July 26, 2013

78 FR 45051 - Small Business Size Standards; Support Activities for Mining; Correction

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on June 20, 2013 (78 FR 37404). The document amended SBA's Small Business Size Regulations by increasing small business size standards for three of the four industries in North American Industry Classification System (NAICS) Subsector 213, Support Activities for Mining, that are based on average annual receipts. This correction does not affect the revised size standards themselves or the Code of Federal Regulations.

The U.S. Small Business Administration (SBA or Agency) is amending its regulations governing small business subcontracting to implement provisions of the Small Business Jobs Act of 2010. In particular, this rule adds a provision providing that for a “covered contract” (a contract for which a small business subcontracting plan is required), a prime contractor must notify the contracting officer in writing whenever the prime contractor does not utilize a small business subcontractor used in preparing its bid or proposal during contract performance. This rule also adds a provision requiring a prime contractor to notify a contracting officer in writing whenever the prime contractor reduces payments to a small business subcontractor or when payments to a small business subcontractor are 90 days or more past due. In addition, this rule clarifies that the contracting officer is responsible for monitoring and evaluating small business subcontracting plan performance. The rule also clarifies which subcontracts must be included in subcontracting data reporting, which subcontracts should be excluded, and the way subcontracting data is reported. The rule also makes changes to update its subcontracting regulations, including changing subcontracting plan thresholds and referencing the electronic subcontracting reporting system (eSRS). Further, the rule adds a provision to the regulations which addresses subcontracting plan requirements and credit towards subcontracting goals in connection with multiple award multi-agency, Federal Supply Schedule, Multiple Award Schedule and government-wide acquisition indefinite delivery, indefinite quantity contracts.

This rule implements provisions of the Small Business Jobs Act of 2010 (Jobs Act) pertaining to small business size and status integrity. This rule amends the U.S. Small Business Administration's (SBA or Agency) program regulations to implement statutory provisions establishing that there a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation. The rule implements statutory provisions that provide that: The submission of an offer or application for an award intended for small business concerns will be deemed a size or status certification or representation in certain circumstances; an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; and concerns that fail to update their size or status in the Online Representations and Certifications Application (ORCA) database or a successor thereto (such as the System for Award Management (SAM) database) at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated. The rule also amends SBA's regulations to clarify when size is determined for purposes of entry into the 8(a) Business Development, HUBZone and Small Disadvantaged Business (SDB) programs.

The United States Small Business Administration (SBA) is increasing the small business size standards for 11 industries in North American Industry Classification System (NAICS) Sector 11, Agriculture, Forestry, Fishing and Hunting, and retaining the current standards for five industries and two exceptions to NAICS 115310. As part of its ongoing comprehensive size standards review, SBA evaluated 16 industries and two exceptions in NAICS Sector 11 to determine whether the existing size standards should be retained or revised. SBA did not review size standards for 46 industries in NAICS Sector 11 that are currently set by statute at $750,000 in average annual receipts. SBA also did not review the 500-employee based size standard for NAICS 113310, Logging, but will review it in the near future with other employee based size standards.

78 FR 37404 - Small Business Size Standards: Support Activities for Mining

The United States Small Business Administration (SBA) is increasing the small business size standards for three of the four industries in North American Industry Classification System (NAICS) Subsector 213, Support Activities for Mining, that are based on average annual receipts. As part of its ongoing comprehensive size standards review, SBA evaluated the four receipts based standards in NAICs Subsector 213 under NAICS Sector 21, Mining, Quarrying, and Oil and Gas Extraction, to determine whether the current size standards should be retained or revised. Within NAICS Sector 21, only NAICS Subsector 213 has receipts based size standards. The rest of the industries in that Sector have employee based size standards which SBA will review in the near future with other employee based size standards.

78 FR 37409 - Small Business Size Standards: Finance and Insurance and Management of Companies and Enterprises

The U.S. Small Business Administration (SBA) is increasing small business size standards for 36 industries in North American Industry Classification System (NAICS) Sector 52, Finance and Insurance, and for two industries in NAICS Sector 55, Management of Companies and Enterprises. In addition, SBA is changing the basis for measuring size from assets to annual receipts for one industry in NAICS Sector 52, namely, NAICS 522293, International Trade Financing. Finally, SBA is deleting NAICS 525930, Real Estate Investment Trusts, from its table of size standards. The U.S. Office of Management and Budget (OMB) included the financial activities formerly included in NAICS 525930 in NAICS 531110, NAICS 531120, NAICS 531130, NAICS 531190, and NAICS 525990. As part of its ongoing comprehensive size standards review, SBA evaluated all receipts based and assets based size standards in NAICS Sectors 52 and 55 to determine whether they should be retained or revised. SBA did not review the 1,500-employee size standard for NAICS 524126, Direct Property and Casualty Insurance Carriers, which it will review in the near future with other employee based size standards. This final rule is one of a series of final rules that will review size standards of industries grouped by NAICS Sectors.